Donald Trump's tweets: Are they presidential statements or not?

Even the US Department of Justice can't decide

They are the most dissected, repeated and analyzed statements in the world – but are Donald Trump's tweets formal statements by the President of the United States, or his own personal reflections?

It seems that no one can agree: even the US Department of Justice, which has represented the short messages from his @realDonaldTrump account as "official statements" in one lawsuit and "personal use of social media" in another.

The same confusion reigns within the White House itself with former press secretary Sean Spicer saying on the record in June that the short-form message are "considered official statements by the president of the United States"; whereas chief of staff John Kelly dismissed them earlier this week as personal reflections.

"They are what they are," Kelley said when asked about Trump insulting North Korean leader Kim Jong-un once again over Twitter. "Believe it or not, I do not follow the tweets. I find out about them."

The distinction matters since one comes with the imprimatur of the United States government and the other is just personal reflection, albeit from a very influential individual.

The distinction also has legal implications, as a number of lawsuits have indicated, with the courts being asked to decide on everything from whether people's legal process rights have been usurped by a Trump tweet, to whether a travel ban affecting millions is legal, to whether Trump's social media team is legally entitled to block accounts.

As with many other aspects of his presidency, the problem stems from Trump's willingness to knowingly and repeatedly blur the traditional lines between his position as head of the Executive Branch and that of a private citizen.

Split personality

Whereas President Barack Obama – the first president to deal with the impact of social media – made a clear distinction between his personal Twitter account and the @POTUS official handle, Donald Trump has eschewed that approach.

The Donald's personal account not only includes the vast majority of the @POTUS account posts but also his own personal comments that, famously, frequently comprise taunts and insults covering everyone from sports stars to world leaders.

Despite repeated efforts by White House staff to control his use of the platform, and persistent public pleas from lawmakers to limit the amount and frequency of public statements, Trump refuses to temper his behavior or give different consideration to the office of the presidency to his personal views.

However, the longer Trump keeps the distinction purposefully blurry, the more likely the law courts will decide the issue. In one case, the Department of Justice (DoJ) is being sued by the James Madison Project for refusing to say whether it has records that state whether President Trump is a target of, or a witness to, an investigation.

The Washington DC district court specifically asked in that case that the US government provide it with "insight on… the President's tweets and what they are, how official they are, are they statements of the White House and the President."

In a response [PDF], the DoJ argued on Monday that: "The government is treating the statements upon which plaintiffs rely as official statements of the President of the United States."

Which is clear. But then in a separate lawsuit brought by the Knight First Amendment Institute on behalf of Twitter users that have been blocked by the @realDonaldTrump account, the DoJ has argued the exact opposite.

Personal use only

In this case, which is before a New York district court, the argument has been made that Trump's "personal" account is a violation of their First Amendment rights since posts made to the account are "official statements."

Not so, says the DoJ, which argued [PDF] that it is not appropriate for the court to insist that Trump unblock those users since it would not only "flout the separation of powers" but that a "First Amendment claim may be directed only at state action, not the president's personal use of social media."

The Knight Institute has been quite open about the fact that it intends to push the case as far as possible up the US legal system and noted that it is the court's constitutional right – and duty – to decide what the law is.

The Department of Justice is right now doing what all defendants in lawsuits attempt to do: argue whatever points they think will make it most likely that the lawsuit will be dismissed before it gets to trial or judicial decision.

And that approach may work – for now. The official position is that Trump's tweets are official presidential statements, except for when that causes problems at which point the argument is made that they are just personal statements.

So long as those cases never make it to the final determination stage, the strange blurry world of President Donald Trump can persist. But as with many other aspects of his presidency – such as the use of his hotels by government representatives, or the extent of his powers as president over immigration – the institutional barrier-breaking can only persist for as long as it takes legal processes to catch up.

What happens when a Supreme Court determination directly conflicts with Donald Trump's personal preference? Who knows but it would strangely fitting if a constitutional crisis was caused over something so shallow as a Twitter account. ®